A week ago, all artillery fire of the Sereno supporters was aimed in my direction—mercilessly, even if I had never made an issue out of Meilou Sereno. I merely expressed my opinion on whether or not quo warranto was a remedy against an impeachable official to determine the legality or validity of title to office. I maintained that it was; I stated my reasons.
Generally argument from authority is a fallacy. In law, however, authority provides backing for argument because jurisprudence largely rests on authority—and sound reason. I am therefore citing in whole in this space what is widely available on the web: The Opinion of the Attorney General of California on the nature of quo warranto. No, he has no chip against Meilou Sereno. But it does give me some assurance that the opinion I have maintained all along—and still strenuously maintain—is not as ignorant a position as some make of it.
What is quo warranto?
Quo warranto is a special form of legal action used to resolve a dispute over whether a specific person has the legal right to hold the public office that he or she occupies.
Quo warranto is used to test a person’s legal right to hold an office, not to evaluate the person’s performance in the office. For example, a quo warranto action may be brought to determine whether a public official satisfies a requirement that he or she resides in the district; or whether a public official is serving in two incompatible offices.
Quo warranto is not available to decide whether an official has committed misconduct in office. A person who commits misconduct in a public office may be penalized or even removed from office, but quo warranto is not the proper forum for those cases. Other processes are available for that purpose.
The term “quo warranto” (pronounced both kwoh wuh-rahn-toh, and kwoh wahr-un-toh) is Latin for “by what authority”—as in, “by what authority does this person hold this office?” The term “quo warranto” is still used today, even though the phrase no longer appears in the statutes.
Quo warranto originated in English common law as a process initiated by the crown to find out whether a person was legitimately exercising a privilege or office granted by the crown, or whether the person was instead intruding into a royal prerogative.
Early California law abolished the writ and substituted a statutory action, identical in purpose and effect to the common-law writ. Current California law provides that the action may be brought either by the Attorney General or by a private party acting with the consent and under the direction of the Attorney General.
The statutes relating to quo warranto are in the California Code of Civil Procedure, starting at section 803.
How does a quo warranto action get filed?
A quo warranto action may not be filed without the approval of the Attorney General (except in those cases where a public agency is authorized to file for itself).
The remedy of quo warranto is vested in the People, and not in any private individual or group, because the question of who has the right to hold a public office is a matter of public concern, not a private dispute. The requirement of obtaining approval also serves the important purpose of protecting public officers from frivolous challenges.
In order to obtain the Attorney General’s approval, a private person or a local agency must file an application pursuant to the rules and regulations issued by the Attorney General. (Cal .Code Regs. tit. 11, §§ 1-11.) The application and supporting documents must be prepared by a licensed attorney.
The party who files the application with the Attorney General is called the “relator.” The responding party is called the “proposed defendant” or “the defendant.”
An application must include a verified complaint; a verified statement of facts; a memorandum of points and authorities; and a notice to the proposed defendant giving him or her at least 15 days to show cause to the Attorney General why the application should not be granted. The application must be properly served on the proposed defendant, and filed within five days of service with the Attorney General.
The proposed defendant is given 15 to 20 days to respond, depending upon where service is made. The relator may then file a reply within 10 days. The Attorney General may prescribe a shorter period of time in special cases or upon a showing of good cause. These response times may also be extended by stipulations filed with the Attorney General, or upon a showing of good cause.
After all of the papers are filed, the Attorney General’s Office evaluates the facts and the law in order to determine whether to grant leave to sue. Because this approval process is an administrative function, not a judicial one, there is no opportunity for formal discovery proceedings between the parties at this stage. From time to time, the Attorney General may ask one party or another for additional information in order to make a full evaluation of the application and responses.
After sufficient time to evaluate the matter, the Attorney General will render a decision either to grant leave to sue, or not to grant leave to sue. The decision whether or not to grant leave to sue involves an exercise of discretion, and will rarely if ever be disturbed by a court.
How does a quo warranto action work?
If leave to sue is granted, then the relator may file a quo warranto action in the appropriate superior court. From that point on, the matter is a judicial proceeding, subject to the procedures and rules of the court. However, the relator must proceed under the direction and supervision of the Attorney General throughout the action.
Before filing a complaint in the superior court, the relator must make any changes or amendments that the Attorney General directs. At any stage of the proceeding, the Attorney General may withdraw, discontinue or dismiss the case, or any part of it. Additionally, the Attorney General may assume management of the litigation at any stage.
In the quo warranto action, the superior court will decide whether the defendant is lawfully entitled to the office in question. If the defendant is not entitled to hold the office, the court may decide who does have that right. If the court decides that the defendant unlawfully usurped the office, the court will exclude the defendant from the office and assess costs. The court may also, at its discretion, impose a fine on the defendant of up to $5,000.
If the rightful holder of the office has suffered damages, those may be recovered in a separate action.
A relator may not file an appeal from the superior court’s decision without the approval of the Attorney General.